Lessons of Nearly-Lost Terrorist Trial

Ahmed Ghailani, the first Guantanamo detainee to be tried in U.S.
civilian court, has been acquitted on 279 of the 280 charges he faced
for his alleged role in the 1998 al-Qaeda bombings of the U.S. embassies
in Kenya and Tanzania. The trial was seen as a major test for President
Barack Obama's hope to bring a number of current and former Guantanamo
detainees before civilian courts, thus addressing the long-running legal
problems of what to do with the suspected terrorists and military
facility that houses them. Ghailani's prosecutors struggled against
legal challenges surrounding his alleged torture while held at a CIA
black site, which prevented prosecutors from calling key witnesses or
presenting related evidence. The now-convicted Ghailani faces up to
twenty years in prison. Here's what legal, national security, and civil
liberties commentators say the trial will mean for future terrorism
trials.

Verdict Is About Torture, Not Terrorism The New Yorker's Amy Davidson writes,
"Let’s be clear: if time in the extra-judicial limbo of black sites,
and the torture that caused some evidence to be excluded, makes
prosecutors’ jobs harder, the problem is with the black sites and the
torture, and not with the civilian trials that might eventually not work
out quite the way everyone likes. It’s a point that bears some
repeating. Our legal system is not a machine for producing the maximum
number of convictions, regardless of the law. Jurors are watching the
government, too, as well they should. Ghailani today could be anyone
tomorrow."

'Miscarriage of Justice' The Weekly Standard's Thomas Joscelyn fumes
at the jury and laments that key evidence and testimony never reached
the jury due to the judge's decision to bar it over concerns it had been
acquired through torture. "It is a mystery how the jury could find that
these facts failed to add up to a guilty verdict on all of the murder
counts. ... Instead of dispensing with Ghailani’s unconvincing story
once and for all, the jury waffled. Thus, a terrorist who helped kill
224 people was found 'not guilty' of their murders. No one should be
'pleased' with that verdict, even if Ghailani will likely serve many
years in prison."

Victory for Constitutional Rights Salon's Glenn Greenwald writes,
"The verdict will provoke predictable, fact-free, fear-mongering
attacks on the American judicial system and on President Obama for using
it in this case ... but this outcome actually proves the opposite. ...
When a reviled defendant is acquitted in court, and torture-obtained
evidence is excluded, that isn't proof that the justice system is
broken; it's proof that it works. A 'justice system' which guarantees
convictions -- or which allows the Government to rely on evidence
extracted from torture -- isn't a justice system at all, by definition.
... The Founders designed it this way on purpose. And they did so with
the full knowledge that clearly guilty and even extremely evil people
would sometimes receive something other than the punishment they
deserve."

Not Ideal Outcome, But Don't Run to Military Commissions National security law blogger Benjamin Wittes reviews
the troubled history of military commissions used to try terrorists,
finding much poorer success. "Trial in federal court didn’t work out the
way the Obama administration
wanted, but it wasn’t a disaster–and we can’t honestly say it worked out
worse than the military commission alternative would likely have done."

Ruling Will Be Boon to Gitmo Proponents The Washington Post's Peter Finn predicts,
"The failure to convict Ghailani, a native of Tanzania, on the most
serious terrorism charges will bolster the arguments of those who say
the military prison at Guantanamo Bay, Cuba, should be kept open, both
to host military commissions for some prisoners and to hold others
indefinitely and without trial under the laws of war."

News reports are focusing on the Germanwings pilot's possible depression, following a familiar script in the wake of mass killings. But the evidence shows violence is extremely rare among the mentally ill.